28-10-2011

Employee’s dismissal for derogatory Facebook comments about work unfair

Employers should not dismiss employees for making derogatory comments about their work on Facebook or other networking sites without making sure the dismissal is reasonable in all the circumstances, following a recent Employment Tribunal (ET) decision.

An employee was ‘friends’ on Facebook with current and ex work colleagues, and also with staff from one of her employer’s major clients, Volkswagen. She posted a comment on Facebook saying ‘I think I work in a nursery and I do not mean working with plants’. When an ex-colleague replied ‘Ya, work with a lot of planks though!’ she replied ‘2 true’.

The comments were visible to all her Facebook ‘friends’, including those from Volkswagen. Two of her colleagues who were also ‘friends’ reported her to their employer.

The employer instigated its disciplinary procedure and she was eventually dismissed on grounds that her comments could potentially damage the employer’s relationship with Volkswagen, and its reputation.

The ET ruled the dismissal was unfair as it was not within the band of reasonable responses open to an employer because, among other reasons:

  • The comments were relatively minor.
  • The employer had failed to ask Volkswagen its views, and therefore had no evidence of whether the employee’s comments would actually damage its relationship with Volkswagen.
  • The employer had failed to consider alternative courses of action, such as demotion.

Recommendation

Employers should:

  • Make sure it is reasonable, in all the circumstances, to dismiss an employee for posting derogatory comments about their work on networking sites, taking into account factors such as the seriousness of the comments, and who can see them.
  • Ensure they have a social media policy prohibiting comments about work, and setting out specific penalties if there is a breach, rather than having to rely on more general grounds.